Supreme Court Justice Anthony Kennedy is considered key to the outcome of the affirmative action and voting rights cases. / Rich Pedroncelli, AP

by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON - The Supreme Court may be on the verge of declaring victory in the fight against racial discrimination.

Two cases nearing decisions by the court within weeks threaten to uproot affirmative action programs at the nation's public colleges and universities and weaken a federal statute that guards against discriminatory changes in state and local voting procedures.

For the civil rights community that came of age in the 1950s and 1960s, a defeat on racial integration, voting rights or both would signal "the worst year for backward movement on civil rights since the post-Reconstruction period," says Gary Orfield, a graduate school professor and co-director of The Civil Rights Project at UCLA.

For conservatives who oppose racial preferences, however, the two cases represent a historic opportunity to move beyond race - or, as Chief Justice John Roberts said in a 2007 decision on public school integration: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Both sides agree that progress has been made: More than 36% of university students are minorities, up from 16% in 1980. Black voter turnout topped white turnout in last year's presidential election.

The question for the court and the country is whether that progress is enough, and whether the elimination of affirmative action and voter protection programs would lead to backsliding on both fronts.

Civil rights groups say the results would be cataclysmic. A decision against universities' use of racial preferences would reduce minority enrollments, they say. Throwing out Section 5 of the Voting Rights Act of 1965, which requires mostly Southern states and municipalities to get federal approval for any voting changes, would result in new forms of discrimination, they contend.

Yet a number of studies suggest that using non-racial criteria to achieve diversity on campus, such as family income and education, is working in states that ban traditional affirmative action programs. And opponents of maintaining the Voting Rights Act say its success can be measured both by rising black voter turnout and a rising number of minority elected officials.

While the high court's two cases on same-sex marriage commanded more attention this year, it's possible that one or both decisions on race will define the current term that concludes next month. That's because they are more likely to produce decisions with national impact:

In Fisher v. University of Texas, which could be decided as early as Monday, the justices are being asked to declare the school's system of attracting minorities unconstitutional. The state's flagship university accepts the top 10% of every high school class but then uses race as one factor in achieving a "critical mass" of racial and ethnic diversity.

Only eight justices will decide the case; Justice Elena Kagan is recused, presumably because of past involvement as U.S. solicitor general. Justice Anthony Kennedy is the likely swing vote between a 5-3 decision against affirmative action and a tie vote that would leave the status quo.

In Shelby County v. Holder, which is more likely to be decided in late June, the full court must decide whether Section 5 of the Voting Rights Act violates the Constitution because it singles out states and municipalities based on a formula last updated in 1972.

Again, Kennedy is considered key to the outcome of a case that could be decided by the narrowest 5-4 margin. The ruling will hinge on whether justices believe the discrimination that was widespread in the 1960s still exists, and whether states in the South continue to be the worst offenders.

"The impulse on the court is to say, 'We have triumphed, and we don't need these things anymore,'" says Pamela Karlan, a professor at Stanford Law School who heads its Supreme Court Litigation Clinic. She disagrees with what she calls that "relatively celebratory narrative."

STATE-LEVEL EXPERIMENTS

There is little question that affirmative action programs have boosted minority enrollments at colleges and universities. The gains have been dramatic for Hispanics, up from 4% in 1980 to 13% in 2010. Black enrollment jumped from 9% to 14.5%.

In 2003, the Supreme Court upheld the use of racial preferences as one factor in university admissions. Before and since that decision affecting the University of Michigan Law School, however, 10 states have banned the practice: California, Texas, Florida, Georgia, Washington, Michigan, Nebraska, Arizona, New Hampshire and Oklahoma.

The Texas ban later was modified to allow some consideration of race, which is the issue in the lawsuit brought by Abigail Fisher, a white girl denied admission to the university's Austin campus. The university accepts the top 10% of students from all high schools but considers race along with other factors in filling out each year's class.

The effect of the statewide bans is mixed. Diversity has been maintained in some states through the use of other factors, such as family income and educational attainment. That hasn't worked as well at some of the best schools, such as University of California branches at Berkeley and Los Angeles, which have seen minority admissions drop.

Because of the state bans and the lack of affirmative action at colleges without selective admissions, some researchers say the impact of a Supreme Court decision affecting public universities would be minimal.

Richard Kahlenberg, senior fellow at the liberal Century Foundation, says universities may have to change their affirmative action policies to focus on other criteria, such as economic status. That may not be bad, he says, because "poor and working-class kids are far more under-represented on campus than African Americans and Latinos."

Others disagree. They fear schools will have difficulty using other factors to achieve diversity and could stop trying altogether. "It will have a devastating effect," Orfield says.

VOTING RIGHTS NUMBERS

There also is little question that the Voting Rights Act blocked discrimination against blacks and other minorities in the South and elsewhere, from Florida to Alaska. Minority turnout now equals or surpasses white turnout in some states, and minorities have been elected to local offices in record numbers.

In recent years, the number of objections to state voting changes by the Department of Justice has declined dramatically. In 1976, there were 64 objections, including 30 in Texas alone. In recent years, the number dropped to five or less. While there were 10 objections last year, this year has produced only one.

Meanwhile, the number of municipalities that have "bailed out" of Section 5 by maintaining a clean record on voting rights for 10 years has risen. From 1998 to 2008, only Virginia municipalities were excused from federal oversight. In the last three years, they were joined by several in California, Texas, Alabama, and the entire state of New Hampshire.

That's either an indication that the law works as intended, as civil rights proponents say - or that it's served its purpose and is no longer needed, as opponents contend.

"The bailout business is booming, and it's not a coincidence," says Rick Hasen, an election law expert at the University of California-Irvine. Civil rights advocates want to show that the law frees municipalities if they stop discriminating, he says.

At the same time, he says, the number of objections by the Justice Department has dropped because of the law's deterrent effect. Municipalities work with federal officials before changing voting procedures so they don't run afoul of the law.

Those who say the law's provision requiring prior federal approval is no longer needed point to the same trend. "Admitting that a prophylactic law as broad as Section 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat," Justice Clarence Thomas said in 2009, during the last challenge to the law. "It is an acknowledgment of victory."

The law's defenders say Section 5 prevented Texas, Florida and South Carolina from enacting new voting restrictions in 2012. This year, they say, it stands as a bulwark against similar discrimination. In Beaumont, Texas, a school board election was canceled to prevent white candidates from running unopposed in three majority-black districts. In North Carolina, lawmakers have proposed new restrictions on voter identification, registration and early voting.

"The barbarians are at the gates," says Gerald Hebert, a voting rights lawyer who has represented many municipalities that have bailed out.

Those opposing views no doubt weigh on the one man who could determine the fate of both cases.

"Justice Kennedy genuinely does value racial diversity and fairness," Karlan says. "Those are very important values for him."